Evidence - statements of fact made to the court

The New Zealand judicial system is adversarial. This means the judge relies on at least two parties presenting opposing submissions and, where appropriate, evidence.

Evidence is presented to the court when the parties do not agree on the facts relating to a proceeding. This can be done by a witness in person or by affidavit.

When a person is giving evidence, they are allowed to make a statement of fact only. They are not allowed to offer opinions about what decision should be made. The parties must make their closing submissions based on the evidence presented.

Affidavits and affirmations - written statements of fact

Affidavits and affirmations are documents that contain information said to be true by the person who swears the affidavit or affirms the affirmation. Affidavits and affirmations are used to present evidence in written form.

The document is known as an affidavit if its contents are sworn on oath on a religious scripture. The document is known as an affirmation if its contents are said to be true but an oath is not sworn on a religious scripture.

The information below relates to the basic requirements of affidavits and affirmations.

These rules refer to affidavits but apply to affirmations as well. The following information applies to both affidavits and affirmations.

Affidavit procedure

Generally the following procedure will be adopted when filing and serving affidavits:

The plaintiff will need to file and serve the affidavits they want to present within 10 working days after an agreement to give evidence by affidavit was filed or, if the rules say that evidence can be given by affidavit, 10 working days after the date when pleadings closed.

The defendant will then file and serve the affidavits they want to present within 10 working days after being served with the plaintiff’s affidavits.

The plaintiff will then, within a further 10 working days, file and serve the affidavits they want to present in reply. The content of these affidavits must strictly reply to points raised by the defendant.

Content of an affidavit

An affidavit should contain all the written evidence that you want to present. It should be written in the first person (for example, ‘I saw…’, ‘he said to me…’), and must state the full name, occupation and place of residence of the person making it. It must only cover matters that would be admissible if you were giving evidence at trial and, if it is an affidavit in reply, it must also be strictly in reply. If the affidavit includes unnecessary material, the court may refuse to read it and may order you to pay the costs caused by that affidavit.

If an affidavit refers to documents, then those documents must be attached and referred to as an exhibit. For example ‘bank statement of plaintiff, dated 01/01/01, marked as EXHIBIT A’. The exhibit itself must be marked with the letter or number assigned to it in the affidavit (for example, the bank statement should be marked with an ‘A’).

For a document to be presented as an affidavit or affirmation it must be sworn or affirmed by you in front of a person lawfully authorised to take affidavits. That person will then mark the exhibit with an exhibit note.

Before the document is sworn or affirmed you should check that you have included all the information you want to present as evidence, and that the information you have provided is ‘true and correct to the best of your knowledge and belief’. A document can be considered to be true and correct to the best of the author’s knowledge and belief if they have taken reasonable care to ensure that all the information contained in it is true, and there are no mistakes in the document.

Mistakes in affidavits are not easily fixed and you will usually need to file another affidavit that corrects the initial affidavit. If, after swearing an affidavit, you realise that it contains a mistake you should contact the court registry. The court registry will tell you if you need to file a second affidavit or if you can amend the initial affidavit by hand (before the person who took the affidavit).

If the affidavit has more than one page, excluding the cover page, then you must initial every page except the page that has been signed. You must also initial every exhibit.

Swearing and affirming

A document is not an affidavit or affirmation until you have given an oath verifying its contents. The oath must be given in front of a person lawfully authorised to take oaths.

Swearing an affidavit refers to making a Christian oath on the Bible. Some other courts have the scriptures of other religions. However, the High Court generally does not carry any scripture other than a Bible.

If you do not want to swear on the Bible, you can affirm the document instead.

People authorised to take affidavits and affirmations

The following people are authorised to take affidavits and affirmations in New Zealand that are presented in the High Court:

Registrar/deputy registrar of the High Court (or District Court)

Justice of the Peace

Solicitor of the High Court.

If an affidavit or affirmation is made outside New Zealand, then the affidavit or affirmation can be taken by:

a Commissioner of the High Court of New Zealand who has authority in that country

Issuing a subpoena

If you need a person to present evidence as a witness and you believe that person may not attend to present evidence, you can have a subpoena issued. A subpoena requires the person it is served on to attend court at a certain day and time in order to present evidence until they are discharged or told by the court they no longer need to attend. A subpoena must be served on the witness personally.

A person can be arrested for failing to attend if they have been subpoenaed. If they do not have a lawful excuse for not attending, they may be fined up to $500.

Examinations and briefs of evidence

A brief of evidence is a statement read in court by a witness. Generally all witnesses will need to have a brief of evidence.

The briefs of evidence must be served on the other parties to the proceeding before the trial. Specific timetables for this will be set out in the rules or by a judge.

A brief of evidence is given under oath, meaning it must be true and correct to the best of the witness’s knowledge and belief.

The witness will usually read their brief in court. They may then be cross-examined and will be given a chance to respond to evidence given under cross-examination. After the witness has been discharged, they must hand their brief of evidence to the registrar who will sign it and record it as being read into evidence; this only applies if the brief is read out loud.

The witness does not need to read the brief out loud if the judge has already read the brief and orders it to be ‘taken as read’. You can then ask the witness their name for the court record and any questions in relation to the brief of evidence.